ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-034

DATE: 20140326

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

KAZIMIERZ GLINSKI
Applicant/Appellant

K. Hull, for the Crown

M. Eisen, for the Applicant/Appellant

HEARD: March 24, 2014

REASONS FOR DECISION

DiTOMASO J.

THE APPLICATION

[1] Mr. Glinski appeals against the conviction imposed by The Honourable Justice Dawson of the Ontario Court of Justice at Barrie, Ontario on December 30, 2013, on a charge of fail to provide a breath sample contrary to s. 254(5) of the Criminal Code.

[2] Pursuant to s. 261 of the Criminal Code, Mr. Glinski brings this application staying the Prohibition Order against driving imposed against him.

[3] The grounds for this application are:

(a) The appeal herein has merit;

(b) The loss of licence involves an extreme hardship to the appellant; and

(c) It is not contrary to the public interest, on the facts and circumstances of the case at bar, to grant a stay of the Prohibition Order.

THE ISSUE

[4] This application turns on whether Mr. Glinski’s appeal is not frivolous. The defence maintains that the appeal has merit and is not frivolous. To the contrary, the Crown takes the position that the appeal is frivolous in as much as no legitimate ground of appeal has been articulated. There does not exist an unreasonable verdict and the application ought to be dismissed.

ANALYSIS

[5] Mr. Glinski brings this application for stay of Prohibition Order pending appeal pursuant to s. 261 of the Criminal Code.

[6] The burden is on the appellant to show that a stay of the order should be granted. The appellant must show that the appeal is not frivolous, that continuation of the driving prohibition pending appeal is not necessary in the public interest, and that to grant the stay would not detrimentally affect the confidence of the public in the effective enforcement and the administration of criminal law.[^1]

[7] The standard of frivolousness has two aspects: (1) whether the appeal is brought for a motivation different than having success in the appeal, and (2) the appeal has little chance of success. In addition, the court must consider the hardship of the appellant and the protection of the public.[^2]

[8] The issue here is whether Mr. Glinski’s appeal is not frivolous.

[9] As for the standard of frivolousness, we are not concerned whether the appeal is brought for a motivation different than having success in the appeal.

[10] Rather, as stated by the court in R. v. McPherson at para. 5:

The second aspect of frivolousness is that the appeal has so little chance of success that no one could possible believe that it could success, so it is frivolous to bring it.

[11] Counsel for Mr. Glinski relies upon R. v. Doodnaught, 2014 ONCA 172, a decision of the Ontario Court of Appeal. At para. 11 in Doodnaught, the court states:

An appeal is not frivolous if the proposed grounds raise arguable issues. Dr. Doodnaught does not have to satisfy me that such ground has a likelihood of success on appeal; rather, he is only required to satisfy me that there is a viable ground of appeal that would warrant appellate intervention if established: R. v. Manasseri, 2013 ONCA 647, at para. 38.

[12] Counsel for Mr. Glinski contends that there is an arguable ground of appeal in this case and that Mr. Glinski would suffer hardship if not granted the application. Mr. Glinski is a truck driver. He is self-employed as an owner/operator trucker. He has not been able to work since his conviction on December 30, 2013. He continues to pay a mortgage on his truck and if he is unable to begin work soon, then he will likely lose his truck. As well, he is at risk of defaulting on his home mortgage and car payments. His affidavit is found at Tab 3 of the Application Record.

[13] Counsel for Mr. Glinski argues that the trial judge came to an unreasonable verdict given her findings that she accepted the evidence of a respirologist, Dr. Lilker.

[14] Mr. Glinski had eight opportunities to blow into the Approved Screening Device at roadside. The trial judge found that the police officer who made the demand was an honest, forthright, credible and reliable witness. She found that on the third and fifth attempts there was not a proper seal. Mr. Glinski was aware of what he was to do upon instruction from the officer. She found that Mr. Glinski was trying to avoid breathing into the device and that he feigned his purported attempts to breath into the Approved Screening Device and that his intent was not to provide a suitable sample.

[15] Counsel for Mr. Glinski submits that the evidence of Dr. Lilker should have raised a reasonable doubt in the mind of the trial judge to the effect that there was some reasonable medical reason which prevented Mr. Glinski from successfully providing a breath sample. Dr. Lilker’s evidence referred to Mr. Glinski suffering from emphysema, asthma and sleep apnea. Rather, the trial judge did not believe Mr. Glinski. The trial judge conducted her analysis of all three branches of R. v. W.(D) and concluded that the Crown had proven beyond a reasonable doubt of Mr. Glinski’s guilt.

[16] The Crown submits that the defence arguments only give rise to the level that Mr. Glinski should not have been convicted as opposed to the judge trial could not have convicted on the evidence before her. The defence has failed to demonstrate any error in law.

[17] The Crown relied upon the Court of Appeal decision in Doodnaught as well citing para. 16 which is distinguishable from the matter and issue before this court.

[18] The Crown pointed to para. 21 of the Doodnaught decision to support her argument that the trial judge’s reasons were exceedingly thorough and correct in law. The trial judge’s decision is 89 pages in length and clearly demonstrates that the trial judge was alive to the issues of fact and law in this case. The ultimate issue was whether the Crown had proven beyond a reasonable doubt that Mr. Glinski had intentionally refused to provide a sample.

[19] I have reviewed the trial judge’s Reasons for Judgment and in particular those reasons commencing at page 79 to 89.

[20] From a review of those reasons, the trial judge was alive to the issue of credibility. She did not accept Mr. Glinski’s evidence on the first branch of W.(D). While the trial judge accepted Dr. Lilker’s evidence, that evidence conflicted with Mr. Glinski’s evidence. In her view, it did not cause an acquittal on this branch of W.(D). It did not establish a reasonable excuse nor did it cause the trial judge to believe Mr. Glinski’s evidence that he was suffering an attack at the time and could not breathe or provide a sample due to his medical condition.

[21] She analyzed the evidence of the defence on the second branch of W.(D) and found that it did not raise a reasonable doubt. She accepted the evidence of Crown witnesses and Dr. Lilker and found them all to be reliable witnesses. However, from reading the trial judge’s reasons at pages 85 and 86 she accepted the evidence of the officer whom she found to be honest, forthright, credible and a reliable witness. On the third and fifth attempts there was not a proper seal. She found Mr. Glinski was aware what he was to do. The officer had instructed him to make a tight seal. The officer testified that typically he puts a fresh mouth piece into the instrument to show the person it is a new mouth piece and is clean and will use his pen to point to the tip and explain “blow in here with a tight seal”. The trial judge accepted that is what he would have said in this case. She accepted that the officer says to this to everyone on which he makes demand for a breath sample. She found as a fact that he did instruct Mr. Glinski to make a tight seal.

[22] She further found that Mr. Glinski did not have air escaping on the first two tries, or on the fourth try. Yet he did on the third and fifth attempts. She found that this was because he was trying to avoid having his breath go into the device. She accepted the evidence of the officer that satisfied her beyond a reasonable doubt that Mr. Glinski blew around the mouth piece. She rejected Mr. Glinski’s evidence that he was legitimately trying to provide samples and was not able to do so because of his medical condition. She found that he was feigning his purported attempts to blow into the Approved Screening Device and his intent was not to provide a suitable sample. She applied the third branch of W.(D) based on the evidence that she did accept and was convinced beyond a reasonable doubt that Mr. Glinski failed to comply with the demand and the non-compliance was intentional. She found that the Crown had proven intentional non-compliance with the demand beyond a reasonable doubt. He was not complying with directions with which he was provided and this was deliberate.

[23] At page 89 of her reasons, she found that that he did not continue blowing until told to stop. He did not blow hard in one steady blow. He did not form a proper seal around the mouthpiece, despite being instructed to do so, and knowing that he was to do so. He did not blow long or steady enough and then tried blowing around the device without a proper seal after having a proper seal on previous attempts. She found that Mr. Glinski’s failure to provide a suitable sample was deliberate on his part.

[24] At the bottom of page 89 of reasons, the trial judge states:

There is nothing in the evidence, that I have heard, that leaves me with a reasonable doubt. I find that the Crown has proven all elements of the offence beyond a reasonable doubt including the intentional nature of the refusing to comply. There is no reasonable excuse in this case. Based on the evidence that I do accept I am convinced beyond a reasonable doubt of the guilt of the accused. Mr. Glinski will be found guilty as charged.

[25] I have no doubt that in relation to hardship, the continued suspension of Mr. Glinski’s driving privileges will present him with serious difficulties if the driving suspension is not stayed.

[26] Nevertheless, the critical question here is whether the appeal is not frivolous. The defence submits that it is not frivolous. Respectfully, I disagree. I am fully aware of the standard of reasonableness. Defence counsel need only satisfy me that there is a viable ground of appeal that would warrant appellate intervention. I find the appellant has not satisfied his burden to show the appeal is not frivolous. I am not satisfied that any such viable ground of appeal that would warrant appellate intervention has been established on this application. The unreasonable verdict argument given the findings of the trial judge regarding the evidence of Dr. Lilker does not present such a viable ground of appeal that would warrant appellate intervention if established. The evidentiary record and the findings made by the trial judge in her detailed and thorough Reasons for Judgment do not, in my view, satisfy this court that the appeal is not frivolous. To the contrary, the trial judge made findings which do not provide Mr. Glinski with an arguable or viable ground of appeal. I am not satisfied that the unreasonable verdict argument articulated in reply by Mr. Glinski’s counsel establishes an arguable or viable ground of appeal so as to show the appeal is not frivolous.

CONCLUSION

[27] For the reasons, I dismiss this application staying the Prohibition Order against driving imposed against Mr. Glinski.

DiTOMASO J.

Released: March 26, 2014

[^1]: R. v. Jay and MacLean (1987), 1987 185 (PE SCAD), 66 Nfld. & P.E.I.R. 84, 50 MVR 137 (P.E.I.S.C.)

[^2]: R. v. McPherson (1999), 1999 BCCA 638, 140 C.C.C. (3d) 316 (B.C.C.A.)